Com. v. Johnson, H. ( 2019 )

J-S07013-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HOWARD CHARLES JOHNSON :
:
Appellant : No. 1451 MDA 2018
Appeal from the PCRA Order Entered August 15, 2018
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000633-2015
BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 26, 2019
Appellant, Howard Charles Johnson, appeals pro se from the August 15,
2018 order dismissing his first petition filed pursuant to the Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We vacate and remand for
further proceedings consistent with this memorandum.
As our resolution of this appeal is based on the procedural posture of
this case, we decline to set forth the factual background. On June 27, 2016,
Appellant pled guilty to two counts of theft by unlawful taking. 1 He was
immediately sentenced to one to three years’ imprisonment and ordered to
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1 18 Pa.C.S.A. § 3921(a).
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* Retired Senior Judge assigned to the Superior Court.
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make restitution. On September 20, 2016, the trial court set the amount of
restitution.2 Appellant did not file a direct appeal.
On August 17, 2017, Appellant filed a pro se PCRA petition. Thereafter,
court-appointed counsel filed a motion to withdraw as counsel and a no-merit
letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). After
receiving the Turner/Finley filing, the PCRA court issued notice of intent to
dismiss the petition without an evidentiary hearing. See Pa.R.Crim.P. 907.
Appellant filed a response to the Turner/Finley letter and the Rule 907
notice. He also filed a supplement to his PCRA petition without leave of court.
On August 14, 2018, the PCRA court granted counsel’s motion to withdraw.
The next day, the PCRA court dismissed the petition. This timely appeal
followed.
Appellant presents issues for our review:
[Was Appellant’s trial counsel ineffective for failing to file a direct
appeal?]
Appellant’s Brief at 5.
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2 This procedure was inconsistent with 18 Pa.C.S.A. § 1106(c)(2) as
interpreted by Commonwealth v. Deshong, 850 A.2d 712 (Pa. Super.
2004). In Deshong, this Court held “that restitution must be determined at
the time of sentencing if the restitution is imposed as a direct sentence.”
Commonwealth v. Schrader, 141 A.3d 558, 562 (Pa. Super. 2016).
Furthermore, this Court held that when restitution is not imposed at the same
time as the judgment of sentence, the restitution order makes the judgment
of sentence a final, appealable order. Id. Hence, Appellant’s PCRA petition
was timely.
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Preliminarily, we must determine whether Appellant preserved this
claim for appellate review. As the Commonwealth notes in its brief, Appellant
did not raise this issue in his pro se PCRA petition. Appellant, however, did
raise this issue in his response to PCRA counsel’s Turner/Finley letter and
the Rule 907 notice. In essence, Appellant argued that the PCRA court should
not grant counsel’s motion to withdraw and dismiss the petition without an
evidentiary hearing. Instead, appellant argued that the PCRA court should
order counsel to file an amended petition raising a claim that trial counsel was
ineffective for failing to file a direct appeal. This was sufficient to preserve the
issue for appellate review. See Commonwealth v. Rykard, 55 A.3d 1177,
1186–1189 (Pa. Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013).
Having determined that Appellant preserved this issue for our review,
we proceed to the merits of the issue presented. “Our standard of review for
issues arising from the denial of PCRA relief is well-settled. We must determine
whether the PCRA court’s ruling is supported by the record and free of legal
error.” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa. Super. 2018)
(citation omitted). Appellant argues that his trial counsel rendered
ineffective assistance of counsel by failing to file a direct appeal as Appellant
instructed.
“[T]he Sixth Amendment to the United States Constitution and Article I,
[Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to effective
counsel. This right is violated where counsel’s performance so undermined
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the truth-determining process that no reliable adjudication of guilt or
innocence could have taken place.” Commonwealth v. Simpson, 112 A.3d
1194, 1197 (Pa. 2015) (cleaned up). To prevail on an ineffective assistance
of counsel claim, a “petitioner must plead and prove that: “(1) his underlying
claim is of arguable merit; (2) the particular course of conduct pursued by
counsel did not have some reasonable basis designed to effectuate his
interests; and, (3) but for counsel’s ineffectiveness, there is a reasonable
probability that the outcome of the challenged proceeding would have been
different.” Commonwealth v. Johnson, 179 A.3d 1153, 1158 (Pa. Super.
2018) (citation omitted). “A petitioner’s failure to satisfy any prong of this
test is fatal to the claim.” Commonwealth v. Wholaver, 177 A.3d 136, 144
(Pa. 2018) (citation omitted).
Notwithstanding these general rules relating to ineffective assistance of
counsel, it is axiomatic that trial counsel’s “failure to file a requested direct
appeal constitutes ineffective assistance per se, such that the petitioner is
entitled to reinstatement of direct appeal rights nunc pro tunc without
establishing prejudice.” Commonwealth v. Ousley, 21 A.3d 1238, 1244
(Pa. Super. 2011), appeal denied, 30 A.3d 487 (Pa. 2011) (citation omitted).
Even if the underlying issue on appeal appears to be frivolous, an attorney is
always required to file a direct appeal when instructed to do so by his or her
client. The attorney, may thereafter seek to withdraw from the representation
if he or she concludes that the appeal is wholly frivolous. See
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Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981); Anders v.
California, 386 U.S. 738 (1967).
Appellant avers that he instructed trial counsel to file a direct appeal
and trial counsel failed to file that direct appeal. If this averment is true,
Appellant is entitled to reinstatement of his direct appellate rights nunc pro
tunc. Hence, we vacate the PCRA court’s order and remand for the filing of
an amended petition by counsel3 and an evidentiary hearing to determine if
Appellant instructed his trial counsel to file a direct appeal.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/26/2019
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3 As noted above, Appellant’s original court-appointed PCRA counsel was
permitted to withdraw. Upon remand, new counsel should be appointed for
Appellant.
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